Excerpt: ...post a bond on the ground that plaintiff is a vexatious litigant and “there is not a reasonable probability that he will prevail in the litigation against the moving defendant.” Plaintiff clearly was deemed a vexatious litigant. The question is whether plaintiff has a reasonable likelihood of prevailing. The court is not bound to assume the truthfulness of the vexatious litigant's complaint. It may weigh the evidence presented on a motion to ...

Excerpt: ...g: To sustain the demurrer of defendants Biltz and Guzman to each cause of action alleged against them for failure to state facts sufficient to constitute a cause of action. To deny leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To grant Biltz and Guzman's motion to strike the allegations and prayer for punitive damages, without leave to amend. (Code Civ. Proc. §§ 435, 436.) To sustain the demurrer of St. Agnes in part, and overrule in...

Excerpt: ...pe. Explanation: “Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. Fairness dictates that a complaint give the defendant sufficient notice of the cause of action stated to be able to prepare the case.” (Leek v. Coop...

Excerpt: ...r in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. (Code Civ. Proc. § 387; Fireman's Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 303‐305.) The intervention must not enlarge the issues in the case and the reasons for intervention must outweigh any opposition by the existing parties. (Code Civ. Proc. § 387; Truck Ins. Exch. v. Sup.Ct. (1997) 60 Cal.App.4th 342, 346; Reliance...

Excerpt: ...orth in boldface typeset. Explanation: Defendants Lopez, Garza, Tienda, Molina, Vasquez and Robles (“Moving Defendants”) have filed the present demurrer to Plaintiff's complaint. A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A ...

Excerpt: ...488, contains the list of factors for use in determining whether the settlement was made in good faith. These include the following: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the ...

Excerpt: ...of the class, one concern is the adequacy of the class representative, who has executed a confidential side settlement agreement, for which he seeks a payment of $10,000. That is approximately 30 times the amount of his likely individual class settlement, as estimated by the Court based on the amount of time he worked for defendant (between 8 and 9 months) and the figures set forth in the points and authorities. The figure represents $180 an hour...

Excerpt: ...r date, time, and place as the parties shall agree to in writing). Sanctions are awarded jointly and severally against Mr. Simpson and counsel for Plaintiff in the amount of $2,975.00, payable within thirty (30) days of this order. The independent medical examination is to occur within ten (15) court days of this order (or on such other date, time, and place as the parties shall agree to in writing). The scope of the examination is limited to an ...

Excerpt: ...h the applicable provisions of the Code of Civil Procedure. Should Plaintiff file a motion to continue trial, the costs of such a filing shall be reimbursed by Defendants. Explanation: Defendants have filed a motion for leave to file a cross‐complaint against codefendant Beyond Tech Solutions, Inc. (“Beyond Tech”). Defendants assert that they believe Beyond Tech to be responsible for some portion of the accident at issue in this case. They ...

Excerpt: ...s shall be filed in connection with the summary judgment motion. Defendants' motion for summary judgment will be heard on August 15, 2019, at 3:30 p.m. in Dept. 403. Explanation: Due to the fact that plaintiff's counsel failed to file plaintiff's opposition brief and supporting declarations, defendants' motion for summary judgment was granted without considering the opposition. Plaintiff's counsel, Steven Glickman, explains that he mistakenly bel...

Excerpt: ...equires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their...

Excerpt: ...es this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (CCP § 437(c), subdivision(p)(2).) In a summary judgment motion, the pleadings determine the scope of relevant issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) A defendant need only “negate plaintiff's theories of liability a...

Excerpt: ...which the aggrieved person would have worked but for the alleged unlawful practice; however, if the defendant is not found within any of these counties, the action may be brought within the county of defendant's residence or principal office. (Gov't. Code § 12965, subd. (b).) In Ford Motor Credit Co. v. Superior Court (1996) 50 Cal.App.4th 306 the Appellate Court held that a change of venue is mandatory under Government Code section 12965, s...

Excerpt: ...court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Such order shall not be considered to be a determination on the merits o...

Excerpt: ...n, as herein noted: ∙ Plaintiff has not signed box 6, the declaration of mailing, from mandatory form CIV‐100. ∙ In the Proposed Judgment, the “Judgment in the Prior Action” is listed as for $74,387.88 in paragraph 1, but only $4,905.66 in paragraph 5. Further, the amount of the judgment listed on the CIV‐100 form does not appear anywhere in the Proposed Judgment. ∙ The interest recorded in the CIV‐100 form ($10,414.18) appears no...

Excerpt: ...gs,” and decide the Petition on the “pleadings alone and without further unnecessary litigation.” (Petitioners' Memorandum of Points and Authorities at 3:9‐10, 4:22‐23, 9:16‐17.) California is a code pleading state. The Code of Civil Procedure provides that pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court. (Code Civ. Proc., § 420.) The Code provides that the pl...

Excerpt: ...eview and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” The agency in question is the Labor Workforce Development Agency (“LWDA”). 2. Complex Case The law and motion in this matter is expected to be formidable, as in most class actions, even if it is resolved by settlement. If the matter goes to trial, ther...

Excerpt: ...n. On February 16, 2017, Bravo and Defendant Ghasan Ali Ahmed entered into a contract whereby Bravo was to construct a home on property located at 6640 W. Yale Avenue, Fresno, CA. See Exhibit A attached to the verified original complaint. The price was $270,000. Ahmed was to pay 10% down‐‐$27,000. However, it is alleged that he insisted on paying $30,000. At some point, it is alleged that Ghasan agreed to pay the subcontractors and materials ...

Excerpt: ...ation: 1. CLASS CERTIFICATION a. Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for ...

Excerpt: ...eading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to each cause of action in Plaintiff's complaint on the grounds that: ∙ The address a...

Excerpt: ...ter the accountant's investigation was complete. However, in the complaint, plaintiffs alleged that they are seeking “no less than $500,000”, which is considerably less than what plaintiffs seek now. Thus, the requested default judgment appears to violate the rule against seeking damages in a default judgment that exceed the amount pled in the complaint. “An entry of a default judgment which exceeds the relief requested is an act beyond the...

Excerpt: ...ance with Civil Code §§ 8204 and 8410; whether the Mechanic's Lien was properly served in compliance with Civil Code § 8416(a)(7) and thus, whether the Mechanic's Lien is valid. See Civil Code § 8416(e). See the Declaration of Carlos Colima and Exhibits 26 and 27 attached to the Plaintiff's Compendium of Evidence. The Plaintiff has not met its burden pursuant to CCP 437c(p)(1) as the moving party. As a result, there is no need to address the ...

Excerpt: ...f Court, Rule 3.1350(b).) This action was filed by plaintiff against Wells Fargo only, contending that plaintiff is the only entity with right to the funds on deposit with Wells Fargo in accounts XXXX1634, XXXX‐5109, XXXX‐8420, and XXXX‐8655. Wells Fargo filed a Cross‐Complaint in Interpleader on July 30, 2018, naming Cold Springs and Santa Rosa (the only other tribe claiming an interest in the accounts) as cross‐defendants. Having no i...

Excerpt: ...ore parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐ obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1), emphasis added.) “A determination by the court that the settlement was made in good...

Excerpt: ...urgery Center's demurrer to the complaint. (Code Civ. Proc. § 430.10, subd. (e).) To order North Point to file its answer to the complaint within 10 days of the date of service of this order. Explanation: Trial Preference Motion: Under Code of Civil Procedure section 36, subdivision (a), A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the follow...

Excerpt: ...ition and complaint may be amended will run from service of the order by the clerk. Explanation: In the fifth cause of action petitioner seeks a writ of mandate to compel the County of Fresno to comply with the Government Code § 8899.50(b) requirement to administer its programs and activities relating to housing and community development in a manner to affirmatively further fair housing and to take no action that is materially inconsistent with ...

Excerpt: ...9;irrelevant, false or improper' matters or “a demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) With respect to punitive damage allegations, mere legal conclusions of oppre...

Excerpt: ...rt's summary judgment order. Plaintiff's objections are overruled. The court declines to rule on all other objections as none are material to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) Explanation: A defendant moving for summary judgment or adjudication has the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Ca...

Excerpt: ...der, a proposed judgment consistent with the court's summary judgment order. Explanation: Defendants Saint Agnes and Dr. Simons have both moved for summary judgment as to the entire complaint on the grounds that plaintiffs cannot prevail on their negligence and loss of consortium claims because, according to defendant's expert witness, defendants did not breach the applicable standard of care when providing care and treatment for plaintiff, a...

Excerpt: ...Jacob, LLP, within 30 days after service of this order. Explanation: “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. §2025.420(b).) Such a protective order may include directions that all or certain of the writings or tangible things designa...

Excerpt: ...3.020.) Defendant shall pay sanctions to plaintiff within 30 days of the date of service of this order. Explanation: Defendant moves to compel plaintiff to provide further responses and documents pursuant to the document request served as part of the deposition notice to plaintiff. (Code Civ. Proc., §§ 2025.280, subd. (a); 2025.450, subd. (a).) Defendant contends that plaintiff failed to comply with the document request served with the depositi...

Excerpt: ... a proposed judgment consistent with the court's summary judgment order. Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the initial burden of production to make a prima facie showing of the “nonexistence of any triable is...

Excerpt: ...ion subpoena duces tecum may be made by a party or the non‐party witness. (Civ. Proc. §1987.1.) A motion to quash production of documents must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (CRC 3.1345, subpara. (a)(5).) That provision also includes the format requirements for a separate statement, which requires that ea...

Excerpt: ...he clerk's service of this minute order. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3...

Excerpt: .... shows that it has paid all outstanding penalties, fees, and taxes for the time period in which it transacted business in California without first obtaining a certificate of qualification from the Secretary of State. (Corp. Code § 2203, subd. (c).) Explanation: “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this ...

Excerpt: ...for attorney's fees and costs, the motion is untimely. Under section 1038, subdivision (a), “In any civil proceeding under the Government Claims Act… or for express or implied indemnity or for contribution in any civil action, the court, upon motion of the defendant or cross‐ defendant, shall, at the time of the granting of any summary judgment, … determine whether or not the plaintiff, petitioner, cross‐complainant, or intervenor broug...

Excerpt: ... liable in tort for negligent injury to those workers. (Lab.Code §3602(a); see also Johnson v. Berkofsky‐Barret Productions, Inc. (1989) 211 Cal.App.3d 1067 [injured employee's relief against employer is limited to workers' compensation]; Santa Cruz Poultry v. Superior Court (1987) 194 Cal.App.3rd 575 [plaintiff's loss of right to bring tort action against employer justified where plaintiff has received workers' compensation coverage].) There ...

Excerpt: ...) Explanation: Under Code of Civil Procedure section 36, subdivision (a), A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (...

Excerpt: ...e accident, loaned to Kozi as part of a farm labor contractor agreement. In the cross‐complaint Kozi asserts two causes of action against RJL for equitable indemnity and comparative fault. RJL's motion is dependent on the conclusion that Kozi totally and completely controlled all of Euceda's employment activities. Initially, the court notes the following rulings on ACM's objections to RJL's evidence: objections nos. 1‐4, 26‐43 are overruled...

Excerpt: ...clams. All new allegations must be set forth in boldface typeset. Explanation: As of May 17, 2019, no opposition appears in the Court's files. A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge d...

Excerpt: ...in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Orange Cnty. Air Pollution Control Dist. v. Superior Court (1972) 27 Cal.App.3d 109, 113.) “The purpose of the motion for summary judgment is to determine whether issues presented by the pleadings actually are triable iss...

Excerpt: ...39;s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge bein...

Excerpt: ... discussed in those rulings. The same settlement is now submitted for approval a third time. In the time since it was signed, case law has clarified several issues which also weigh against approval. In Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal. App. 5th 667, 674‐ 675, the Court of Appeal determined that the 226.3 penalty applied to all violations of Labor Code section 226(a), not just where the employer completely failed t...

Excerpt: ...for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” CDF Firefighters v. Maldonado (5th Dist. 2008) 158 Cal. App. 4th 1226, 1239. The pleading alleges a workers compensation policy, with a limit of $1,000,000, policy number GWRC847238, with a coverage period of October 15, 2017 to October 15, 2018, for a price of $4,850, payable in 11 monthly installments with a deposit of $727.50. That is rev...

Excerpt: ...improper requests for fees. To grant the motion for costs, less $520 for Court Call fees which are expressly prohibited by Civil Code section 1033.5. Sukhdev Gill and Harjit Singh are awarded costs in the amount of $3,724.38. Explanation: In the case at bar, Sukhdev Gill and Harjit Singh move for an award of attorney fees in the amount of $ 41,852.00 pursuant to Civil Code section 1717, as well as costs in the amount of $ 4,244.38. Opposing parti...

Excerpt: ...onse within 10 days after service, the Court will exercise its discretion and consider Plaintiff/Respondent Inmany's (“Respondent”) late‐filed opposition, as no prejudice to Petitioner is apparent. (See, e.g., Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 488.) PAGA/Waiver A PAGA action may be brought “by an aggrieved employee on behalf o...

Excerpt: ...demurrer to the second through seventh causes of action with leave to amend. To grant the motion to strike references to punitive damages with leave to amend. A Third Amended Complaint in conformity herewith shall be filed and served within 10 days of the clerk's service of this minute order. All new allegations shall be in boldface type font. Explanation: Court's Own Motion to Strike Third Amended Complaint: Code of Civil Procedure section 436 p...

Excerpt: ...f the minute order. All new allegations in the first amended complaint are to be set in boldface type. Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in ...

Excerpt: ... court has already ordered CMF to provide documents responsive to those requests at the pretrial discovery conference, and thus no new order is necessary. The court's prior order is still in effect, and CMF is obligated to comply with it. If CMF continues to fail to produce documents as ordered, it will be subject to additional sanctions, including potential issue, evidence or terminating sanctions. (Code Civ. Proc. § 2031.320, subd.'s (b) and (...

Excerpt: ...mpelling defendant to provide documents pursuant to his agreement to do so. (Code Civ. Proc. §§ 2031.310; 2031.320.) Defendant shall provide further responses without objections and responsive documents within 10 days of the date of this order. To grant sanctions against defendant (but not his attorney) in the amount of $1,060. Sanctions shall be paid within 30 days of the date of this order. Explanation: First, while defendant Schoonover has a...

Excerpt: ...n of documents is ordered stayed until five days after the protective order is signed by the Court. Explanation: A motion to quash or modify a subpoena may be made on the grounds that the matters sought to be discovered are privileged, protected, or otherwise beyond the scope of discovery. (Code Civ. Proc. §2017.010.) A motion may also be brought on the grounds that the discovery sought is unreasonable, or oppressive or is an unreasonable violat...

Excerpt: ...elieving the petitioner from Section 945.4." (Gov't. Code § 946.6, subd. (a).) Under section 946.6, subdivision (c), "The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 [e.g., no more than one year after the claim accrued] and was denied or d...

Excerpt: ...minute order. Explanation: Motion for Attorney's Fees: A prevailing buyer in an action under the Song– Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ...

Excerpt: ...rd, eighth, eleventh, fifteenth, sixteenth and eighteenth causes of action. (Code Civ. Proc. § 437c(f)(1).) Explanation: Plaintiff asserts 18 different employment‐related claims, including discrimination, harassment, retaliation, and wage and hour claims. As pointed out in the moving papers, plaintiff made many admissions at his deposition that were devastating to most of his claims. The court notes that the moving papers primarily rely on pla...

Excerpt: ...ation: Service of an examination order on the judgment debtor generally creates a one‐year lien on all of the debtor's nonexempt personal property whether or not it is in the debtor's possession and control. (Code Civ. Proc., § 708.110, subd. (d); In re Burns (9th Cir. BAP 2003) 291 BR 846, 851.) There is a split of authority as to whether the debtors' filing for bankruptcy stays the one year lien created by an order of examination. (S...

Excerpt: ...rder. Explanation: This is a legal malpractice action. Plaintiff alleges that he retained defendants Nicholas Wagner and Wagner, Jones, Kopfman & Artenian to represent him in a wrongful discharge matter filed in federal court against his employer. SK Foods filed for bankruptcy, and defendants negligently represented him in that they (1) failed to properly prosecute the case in bankruptcy court by failing to have the bankruptcy stay lifted to proc...

Excerpt: ...no moving papers were filed. Plaintiff is granted ten days leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanation: Defendant Syngenta Seeds, LLC demurs to the following causes of action: (1) negligence (production and delivery of defective seed); (2) negligence (sale of old seed); (3) negligent misrepresentation; and (4) intentional misrepresenta...

Excerpt: ... the ground of inconvenient forum. (Code Civ. Proc. § 418.10(a)(2).) It is not disputed that all of plaintiff's claims against Jeffrey Hacker arise from and are based on the stipulated Judgment for Dissolution of Marriage entered in case no. 16CEFL00096. The Judgment for Dissolution specifically reserved jurisdiction in the Family Court action for any enforcement of the Judgment and to resolve any matter subject to the jurisdiction of the court....

Excerpt: ...and place in the next 30 days. Explanation: In this action plaintiffs allege that the Fresno County Public Defender's Office suffers from structural deficiencies that prevent it from providing indigent defendants with meaningful and effective assistance of counsel in violation of the federal and California constitutional guarantees of due process and right to counsel, and the constitutional and statutory rights to a speedy trial. Plaintiffs alleg...

Excerpt: ...he motion to strike without leave to amend. Defendants are to submit a proposed order dismissing the Plaintiff's first amended complaint as to them with prejudice within ten (10) days of the date of service of this order. Explanation: Defendants James Davis, M.D. and the Regents of the University of California (“Moving Defendants”) have filed a demurrer and a motion to strike the first amended complaint filed by Plaintiff Verrees. The argumen...

Excerpt: ...y set for May 9, 2019, are off calendar as moot in light of this ruling. Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc. § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard...

Excerpt: ...d preliminary approval lists the Turley and Mara Firm. The settlement attached to the most recent Mara declaration lists the Turley and Mara firm as class counsel. But the Notice to Class lists the Mara Firm. The most recent declarations are filed with the Mara Law Firm listed as counsel, at a new address. The Court takes judicial notice on its own motion of the February 6, 2019 filing by the Turley Firm on Trade Street in San Diego listing Willi...

Excerpt: ...cy favoring arbitration is so strong that "any doubt on the issue must be resolved in favor of arbitration." (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406; See also AT & T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 650 [any doubt as to whether a particular dispute falls within ambit of arbitration clause resolved in favor of arbitration]; See also, United Transp. Union, AF...

Excerpt: ... fees by May 1, 2019. Explanation: 1. Substitution of Attorney Required for New Firm Until a substitution of attorney is filed, signed by the client, counsel of record and the firm of record remain the same. Code of Civil Procedure sections 284 and 285, People ex rel. Department of Public Works (1967) 248 Cal. App. 2d 618, 623. 2. Merits of Motion The interrogatories formally state they may not contain all information, and that a diligent search ...

Excerpt: ...iv. Proc., § 473, subd. (b).) Here, defendant Hanna Design Group, Inc., seeks to set‐aside its default which was entered on January 7, 2019. In support thereof, it makes three arguments: (1) plaintiffs' complaint is improperly drafted; (2) plaintiffs failed to notify defendant of their intent to seek default before doing so; and (3) attorney fault. The first two arguments are unpersuasive. First, defendant argues that default must be set aside...

Excerpt: ... is correct that the plaintiff's causes of action survive even after her death. “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Also, “A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc.,...

Excerpt: ...ade on one of the following grounds: (A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd.'s (b)(1) and (c)(1)(A).) Here, plaintiff contends that the answer fails to allege any facts to support an affirmative defense to the claims al...

Excerpt: ...mon question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Here, it does not appear that there are sufficient overlapping facts or issues of law that would justify consolidating the cases. Plaintiffs claim tha...

Excerpt: ...tion is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted wit...

Excerpt: ...omplaint of plaintiff Douglas Jackson alleges that on 3/17/15 at Nashville's Bar and Grill (owned and operated by defendant Nashville Investment Group, LLC), defendants Raustyn Hurst, Sharonja Curry, Elizabeth Ferreira, Luke Coghlan, John Hurst, III, and Doreen Duinkerken aka Doreen Hurst (referred to herein as “Doreen”) assaulted and battered plaintiff by striking his face and body. Against the individual defendants plaintiff alleges causes ...

Excerpt: ... the demurring defendants. Explanation: The court will address these two actions together. Aside from the addresses and dates, the relevant facts, causes of action, allegations and arguments are the same in each action. Trustee's Privilege Defendants contend that all claims against them are barred by the Trustee's privilege. As in the demurrers to the original complaints, plaintiffs do not respond to this argument. Civil Code § 2924(d) states th...

Excerpt: ...., there is house on the property and as a result, the property cannot be physically divided. But, there are no facts pleaded regarding attempts to obtain an agreement to sell. More importantly, CCP § 872.510 states: The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partitio...

Excerpt: ...he Summons and Complaint. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414 [“[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.”].) On the other hand, it is also true that if the evidence supports a finding that defendants were properly served, then their a...

Excerpt: ...nation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc. §425.16, subd.(a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court deci...

Excerpt: ...��In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.�...

Excerpt: ...ral demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (19...

Excerpt: ...ended Complaint. Explanation: 1. CLASS CERTIFICATION a. Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an ...

Excerpt: ...d upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” (Code Civ. Proc., § 583.210, subd. (a).) However, in computing the time within which service must be made pursuant to section 583.210, if “[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's con...

Excerpt: ...injuries. See Declaration of Plaintiff at ¶ 7 and see the deposition of Arenas at page 31 lines 10‐16 attached as Exhibit A to the Declaration of Milligan. Explanation: In support of its motion, the Defendant relies extensively on the case of Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030. In that case, Ms. Peralta fell in the bakery section of Vons. An assistant store manager was summoned. She observed that Ms. Peralta was wea...

Excerpt: ...ourt may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendme...

Excerpt: ...s of Possession: Plaintiff has met all of the requirements for issuance of the writs of possession under Code of Civil Procedure section 512.010. Plaintiff's claim is based on two written loan agreements and the associated guaranties executed by defendants. The claim appears to be probably valid, as plaintiff loaned defendants money pursuant to the written contracts, defendants promised to repay the loans, and defendants have allegedly failed to ...

Excerpt: ...mend. (Code Civ. Proc. § 430.10(e).) Defendants are to submit to this court, within seven days of service of the minute order, a proposed judgment dismissing this action as to the demurring defendants. The motion to strike punitive damages allegations are moot in light of the ruling on the demurrer. Explanation: Initially the court notes that it does not appear that the Ciresi defendants have met and conferred in person or by telephone as requir...

Excerpt: ...e the facts appearing on the face of the complaint, it also accepts as true the facts appearing in the attached exhibits, and if the exhibits' facts are contrary to the pleading's allegations, the exhibits will be given precedence. (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1146.) However, plaintiff's interpretation of the contract must be accepted as correct in testing the sufficiency of the complaint. On general demu...

Excerpt: ...37c.) The County is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Defendants Interstate and Meza have filed a cross‐complaint against the County based on the theory that the County is liable for plaintiffs' injuries due to the existence of an allegedly dangerous condition on the property where the accident occurred, which was t...

Excerpt: ...order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests onl...

Excerpt: ...tion is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted wit...

Excerpt: ... a single cause of action for retaliation in violation of Government Code section 12940, subdivision (h). As a condition of plaintiff being granted leave to file a Second Amended Complaint alleging two new causes of action, this motion is being treated as one for summary adjudication of the retaliation cause of action. Plaintiff objects to the motion on the ground that the moving papers were not timely served. The proof of service of the motion s...

Excerpt: ... court … determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc. § 639, subd. (a)(5).) On the other hand, Rule of Court 3.920, subdivision (c) provides that a discovery referee may not be appointed under Code of Civil Procedure section 639, subdivision (a)(...

Excerpt: ... Civ. Proc. §2025.450(g)(1).) Plaintiffs to pay sanctions to the Betts & Rubin law firm, within 30 days of the clerk's mailing of the minute order. Explanation: “The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that actio...

Excerpt: ...e trial to a mutually agreeable date no later than July 2, 2019. (California Rules of Court, rule 3.1332, subdivision (c)(6) & (c)(7).) Explanation: Code of Civil Procedure section 473 authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) In the case at bar, plaintiff seeks leave: (1) to correctly name her veh...

Excerpt: ...the minute order. Explanation: Defendant demurrers to the entire complaint based on uncertainty, and also demurs generally, i.e., failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e) and (f).) On Page 2, Paragraph 8, plaintiff checked the box indicating the cause of action attached was for breach of contract, and at Paragraph 10 she indicated that the amount of damages requested was $37,000, wi...

Excerpt: ...rtfeasors or co‐ obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc. § 877.6(a)(1).) “A determination by the court that the settlement was made in good faith shall bar any other joint tortfea...

Excerpt: ...he time in which the amended pleading may be filed will run from service by the clerk of the minute order. All new allegations are to be set in boldface type. Explanation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable...

Excerpt: ...sly authorized under Civil Code section 3439.07, subdivision (a)(2), which provides that in an action for relief under the UVTA the creditor may obtain “[a]n attachment or other provisional remedy against the asset transferred or other property of the transferee” “in accordance with the procedures described in Title 6.5 (commencing with Section 481.010) of Part 2 of the Code of Civil Procedure.” This provides one of the statutory exceptio...

Excerpt: ...on 473(a)(1) states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any ter...

Excerpt: ...or uncertainty to the second cause of action and the common count and rendered moot. An amended pleading in conformity with the ruling of the Court is to be served and filed within 20 days of notice of the ruling. Notice runs from the date that the Minute Order is served by the Clerk plus 5 days for service via U.S. Mail. (CCP § 1013). Explanation: Requests for Judicial Notice Defendants request judicial notice of the certified license history o...

Excerpt: ...ffidavit stated facts establishing every element ... necessary to sustain a judgment in his favor.” See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Given that the moving party has not met its burden, it is not necessary to examine the opposition, the reply or any objections submitted. Explanation: Plaintiff's Separate Statement Plaintiff submits a Separate Statement of 8 “undisputed facts.” However, the Separate Statem...

Excerpt: ...a further declaration segregating the fee‐related fees from the non‐fee‐related fees. If there are objections to the further declaration they may be submitted by March 2, after which the court will make a final ruling on the total fee award. Explanation: The court of appeals has already determined that both Petitioners are entitled to an award of attorney fees under Code of Civil Procedure 1021.5, and remanded to this court to determine the...

Excerpt: ...,” where “described properties” is defined as the properties listed at (A), (B), and (C) in the preamble to the requests. The word “transaction” will be deemed to be defined as “a loan made in 2015 for installation of solar and lighting panels at the locations referenced in the contract.” The hearing will be ordered continued to 3:30 p.m. on Wednesday, February 27, 2019 in Department 403. The parties are ordered to meet and confer o...

Excerpt: ... is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted with a ...